TMI Blog2017 (11) TMI 1848X X X X Extracts X X X X X X X X Extracts X X X X ..... at an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section - Miscellaneous Applications filed by the revenue are dismissed. - M. A. Nos. 24,25&29to36/(Asr)/2017 (Arising out of I.T.A. Nos. 253,348,251,346/Asr/2014, I.T.A. Nos.380,408,54,115/Asr/2015, I.T.A. Nos.252,347/(Asr)/2014) Assessment Years: 2010-11, 2008-09, 2012-13, 2011-12 &2009-10 - - - Dated:- 6-11-2017 - Sh. T. S. Kapoor, Accountant Member And sh.N. K. Choudhry, Judicial Member Appellant by: Sh. Rahul Dhawan (D.R.) Respondent by: Sh. Sudhir Sehgal ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consolidated order is being passed. 3. At the outset, the Ld. DR submitted that Ld. CIT(A) had calculated profit on gross purchases as well as on net purchases made by the assessee and finally he had applied profit ratio calculated on the basis of net purchases which was higher than gross profit ratio calculated on the basis of gross purchases. The Ld. DR submitted that though the Hon'ble Tribunal had agreed to the method of calculation of estimating gross profit but instead of applying gross profit margin calculated on the basis of net purchases applied gross profit margin calculated on the basis of gross purchases to the figure net purchases and therefore he argued that there was a mistake apparent from record which needs to be rectified u/s 254(2) of the Act. The Ld. DR further submitted that the Hon'ble Tribunal itself had held that sales were not reliable and had dismissed the contention of Ld. AR that G.P. ratio should have been calculated on sales. 4. The Ld. AR on the other hand submitted that Hon'ble Tribunal while passing the order has dealt upon the issue elaborately in para 28 onwards at page 21 to 25 and each and every issue has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the material placed on record. We find that in the present cases, the books of accounts of the assessee were rejected and the Assessing Officer had estimated the incomes of assessee by applying gross profit ratio on the basis of gross profit ratio calculated on the basis of discount received by assessee from the suppliers. The Ld. CIT(A) calculated profit on gross profit ratio on gross purchases as well as gross profit ratio on net purchases (that is after discount) and applied the gross profit ratio arrived at on the basis of net purchases whereas the Hon'ble Tribunal had held that the gross profit ratio calculated on the basis of gross purchases is to be applied and in this respect has passed a speaking order after recording its findings at para 28 which is reproduced below: 28. Now coming to appeals filed by assessee. The ld. CIT(A) calculated suppression in gross profits by applying the highest Gross Profit ratio. We are in agreement with findings of the ld. CIT(A) so far as mentioned of calculation of suppression in gross profit is concerned, however, we are not in agreement with the ld. CIT(A) where he applied the highest percentage of gross profit rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after rejecting the arguments of Ld. AR to calculate the G.P. on sales and therefore there is no mistake apparent from record which could be rectified under the provisions of section 254(2) of the Act. The Ld. AR has relied on a number of case laws holding that Tribunal cannot review its own orders and it can only rectify mistake which is apparent from mistake. A bare look at section 254(2) of the Act, which deals with rectification, makes it amply clear that a mistake apparent from the record is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. Apparent means visible; capable of being seen; easily seen; obvious; plain, A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plain meaning of the word apparent is that it must be something which appears to be so ex facie and it is in capable of argument or debate. It is therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. The Hon'ble Supreme Court in the case of CIT Vs. Karan Chand Thapar Br. P. Ltd., 176 ITR 535 has held as under: It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any mistake apparent from the record . It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section. Therefore, in view of the facts and circumstances of the case, and in the light of ratio of the decisions cited and discussion as above, we do not find any substance in the application of revenue and dismiss the same being devoid of any merits . 6. In view of the above, the Miscellaneous Applications filed by the revenue are dismissed. Order pronounced in the open Court on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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